453 F.

3d 21

Wayne Blyth HEALY, Petitioner, Appellee,

v.
Luis SPENCER, Respondent, Appellant.
No. 06-1269.

United States Court of Appeals, First Circuit.

Heard May 5, 2006.
Decided June 27, 2006.

Maura D. McLaughlin, Assistant Attorney General, Criminal Bureau,

with whom Thomas F. Reilly, Attorney General, was on brief, for
appellant.
Wendy Sibbison for appellee.
Gary D. Buseck and Mary L. Bonauto on brief for Gay & Lesbian
Advocates & Defenders, amicus curiae.
Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.
LYNCH, Circuit Judge.

Petitioner Wayne Healy was tried in 1981 for the murder of Richard Chalue,
who had been found stabbed to death in his home. At trial, the prosecution
suggested, in response to certain defense arguments, that Healy killed Chalue
during a homosexual encounter gone awry. Healy was convicted and is now
serving a life sentence.

More than fifteen years later, in response to a discovery request connected to

Healy's third motion for a new trial, prosecutors for the first time turned over to
Healy a pathologist's report from the post-mortem examination of Chalue.
(Healy had had access all along to a shorter, final autopsy report). This
preliminary report said an examination of Chalue's genitals and rectum had
revealed no marks suggestive of sexual activity. Based on this information,
Healy subpoenaed the hospital where the exam was conducted; in response, the
hospital turned over a handwritten note stating that smears from Chalue's mouth

and rectum had tested negative for sperm.

3

Relying on these documents, Healy in 1999 filed an amended motion for a new
trial in state court on the ground that the prosecution had suppressed
exculpatory evidence in violation of his due process rights. See Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He argued, inter
alia, that the newly turned-over portion of the report on the post-mortem exam
tended to prove that the killing did not occur in connection with a sexual
encounter, and that this would have made a crucial difference at trial. The
Massachusetts Supreme Judicial Court (SJC) rejected his claim. See
Commonwealth v. Healy (Healy II), 438 Mass. 672, 783 N.E.2d 428
(Mass.2003). Healy then petitioned the federal court for habeas corpus.

The district court granted habeas corpus relief. The court said the SJC had
erred by failing to recognize the centrality of the sexual encounter theory and
by not explicitly factoring into its analysis "how extremely close a case" the
murder trial had been. Healy v. Spencer (Healy III), 397 F.Supp.2d 269, 290,
293 (D.Mass.2005).

We reverse. The SJC considered the whole record and reached a well-reasoned,
supportable conclusion that Healy had not demonstrated Brady prejudice. Its
analysis was not "objectively unreasonable," Lockyer v. Andrade, 538 U.S. 63,
75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), and the writ should not have
issued.

I.
6

We describe the facts as they were found by the SJC, supplemented with other
record facts consistent with the SJC's findings. Lynch v. Ficco, 438 F.3d 35, 39
(1st Cir.2006).1

Police came to Chalue's apartment in Holyoke, Massachusetts, early on the

morning of August 8, 1980, after receiving a report that Chalue had been
screaming for help. Healy II, 783 N.E.2d at 431. The police found Chalue dead
on his bed, stabbed seventeen times in the chest, neck, and thigh. Id. Chalue
had on a pair of jeans, which were pulled halfway down his legs; he was
otherwise naked. His hands were bound with socks; he also was gagged. Id. On
top of a dresser in the bedroom, approximately four to five feet from the body,
police found a pair of underwear. Testing of the underwear revealed the
presence of semen consistent with Chalue's blood group. Id. The pathologist
who conducted Chalue's autopsy opined, based on the location and angle of the

wounds, that the perpetrator had been kneeling on the bed at the time the
wounds were inflicted. Id.
8

A bloodstained knife was found on the dresser in Chalue's bedroom. Id. On the
table in Chalue's kitchen were a partially empty bottle of rum, two bottles of
cola, a glass, and an ashtray containing cigarette butts. Commonwealth v. Healy
(Healy I), 393 Mass. 367, 471 N.E.2d 359, 364 (Mass.1984). Police also found
a receipt for rum, cola, and ice, stained with blood, on the third-floor landing in
Chalue's apartment building. Id.

Police contacted Healy after finding his telephone number in Chalue's address
book. Id. Healy at first said he had not seen Chalue in months. He later changed
his story, telling police that he had purchased the rum, coke, and ice and
brought it to Chalue that evening, but had not gone inside. Id. at 365. Healy also
lied about the timing of his movements that night: In an interview with police
on the evening of August 8, Healy stated that after leaving Chalue, he had
returned home by 10:15 p.m., and that police could verify that with Healy's
roommate, George Roy.2 When questioned, however, Roy admitted that he and
Healy had agreed to say Healy returned home at 10:15 p.m. but that it actually
might have been closer to 12:30 a.m. Id. Healy then admitted to police that he
had not gotten home by 10:15 p.m., but instead had gone out to two gay bars
after leaving Chalue. Id.

10

At Healy's trial, the prosecution introduced a variety of circumstantial evidence

tying him to the crime. The Commonwealth's fingerprint expert testified that
Healy's fingerprints were on the rum and cola bottles, and that at least one of
the cigarettes in the ashtray on Chalue's table had been smoked by someone
who was both a "nonsecretor," i.e., who did not secrete blood group substances
in his saliva, and who had Type B blood. Id. at 364. Healy was a nonsecretor
with Type B blood; the Commonwealth's expert testified that these two
characteristics appear together in only 2% of the population. Id.

11

The Commonwealth's expert serologist testified that the blood on the knife
contained antigens consistent with a mixture of blood of Types A and B, and
that a long-sleeved shirt found in Healy's apartment also had a small bloodstain
with both A and B antigens. Chalue's blood was Type A. Id. Finally, Type B
blood was found on the gear shift and brake lever of Healy's car, and police
officers who questioned Healy on the evening of August 8 saw that he had a
bandage on the palm of his right hand. The doctor who had sutured Healy's
wound earlier that evening testified that in his opinion the wound had been
between four and twenty-four hours old at the time he treated it, and that
Healy's wound could have been caused by the knife found in Chalue's bedroom.

Id.
12

Testifying at trial, Healy said he had cut his hand on a broken glass in his
kitchen on the morning of the 8th. Id. at 365. He admitted that, contrary to his
earlier statements to police, he had gone inside Chalue's apartment the night of
the murder. Id. at 371. As to Healy's lies about what time he had come home
that night, Healy and Roy both testified that Healy had lied because he had not
wanted to disclose to the police that he was homosexual. Healy II, 783 N.E.2d
at 432. The prosecution countered that explanation with evidence that Healy
had led an openly gay lifestyle, id., suggesting that the lie was not explained by
the reason Healy gave.

13

Later, during closing arguments, the defense argued that the absence of blood
on the clothes Healy said he had been wearing that night3 meant he could not
have been the person who stabbed Chalue seventeen times. Healy I, 471 N.E.2d
at 373. The prosecution responded to this defense claim in its own closing by
arguing that the killer might well have been nude, thus explaining why the
killer's clothes might not have been bloody:

14

This man was stabbed 17 times. Blood was going all over the place. . . . Now,
you've seen the photographs, Ladies and Gentlemen. The one I just showed
you, what kind of activity do you think was going on in that bedroom? Ask
yourselves that. Don't leave your common sense at home. Does it necessarily
follow, Ladies and Gentlemen, that that person who was with Mr. Chalue had
any clothes on at all?

15

Id.

16

The case went to the jury on April 3, 1981. In the course of the deliberations,
the Commonwealth made two motions for mistrial. The first was based on a
juror's requested re-instruction on permissible inference, reasonable doubt, and
circumstantial evidence. The second came after a local newspaper published an
article on the case which was prejudicial to the prosecution. In considering the
second motion, the trial court noted that the trial was "delicate" and that "a
small matter . . . could tip the balance."

17

The trial court ultimately denied the motions for mistrial. The jury returned a
conviction on April 8; the next day, Healy was sentenced to life in prison.

18

In preparation for Healy's trial, prosecutors had turned over to the defense a
final autopsy report containing Chalue's cause of death and a gross anatomical

description. Healy II, 783 N.E.2d at 433. However, prosecutors had not turned
over either the earlier report discussing the examination of the victim's rectum
and genitalia or the handwritten notes reporting the absence of sperm.4 On
April 11, 1997, Healy brought a third new trial motion5 and requested
additional discovery; this request led to production of the earlier report and the
notes. Healy subsequently filed an amended new trial motion asserting his
Brady argument. Following an evidentiary hearing, a state Superior Court judge
denied the motion. The SJC affirmed in Healy II. On November 8, 2005, the
district court granted habeas relief.6
II.
A. Standard of Review
19

Our review of a district court's grant or denial of habeas is de novo. Norton v.

Spencer, 351 F.3d 1, 4 (1st Cir.2003). Put differently, the district court opinion,
while helpful for its reasoning, is entitled to no deference.

20

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub.L. No. 104-132, 104, 110 Stat. 1214, 1218-19, our standard of review of
the SJC's decision depends on whether that court "adjudicated on the merits"
Healy's Brady claim. 28 U.S.C. 2254(d). If it did, we review only to
determine whether its conclusion "involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme Court of the
United States." McCambridge v. Hall, 303 F.3d 24, 34 (1st Cir.2002) (en banc)
(internal quotation marks omitted) (quoting 28 U.S.C. 2254(d)); see also
Lockyer, 538 U.S. at 75, 123 S.Ct. 1166 (holding that state court's analysis must
be "objectively unreasonable" to run afoul of the "unreasonable application"
prong). If it did not, we review de novo. McCambridge, 303 F.3d at 35. Here,
as Healy concedes, the "objectively unreasonable" standard applies. We explain
why.

21

There are three components to a Brady claim: "The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene,
527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Banks
v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004).
Prejudice exists only if there is a "reasonable probability of a different result"
had the evidence been disclosed. Banks, 540 U.S. at 699, 124 S.Ct. 1256
(internal quotation marks omitted) (quoting Kyles v. Whitley, 514 U.S. 419,
434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)); see also McCambridge, 303

F.3d at 37. "Reasonable probability" denotes a probability sufficient to

"undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115 S.Ct. 1555.
22

The SJC assumed that the first two elements of a Brady claimthat the
evidence was favorable to the defendant and that it had been withheld by the
prosecutorhad been made out. Healy II, 783 N.E.2d at 435. In analyzing the
third element, prejudice, the SJC acknowledged the Brady standard. The SJC
chose to use what it has characterized as its more defendant-friendly state
standard for prejudice, applicable in certain Brady-type cases. Id. (citing
Commonwealth v. Tucceri, 412 Mass. 401, 589 N.E.2d 1216, 1220, 1223 n. 11
(1992) (stating that the SJC's prejudice standard is "more favorable to
defendants than the Federal Constitutional standard")). The SJC stated that the
defendant bore the burden of establishing a "`substantial basis' for . . .
claim[ing] prejudice." Healy II, 783 N.E.2d at 435 (quoting Tucceri, 589
N.E.2d at 1223). It said prejudice is measured by whether the reviewing court,
examining the entire record, "can be confident that, even if the prosecution had
supplied the report to the defendant[] in timely fashion, the report or available
evidence disclosed by it would not have influenced the jury." Id. (alteration in
original) (internal quotation marks omitted) (quoting Commonwealth v. Daye,
411 Mass. 719, 587 N.E.2d 194, 200 (1992)). Since the SJC used a standard
more favorable to Healy than the federal standard, we consider the Brady issue
to have been "adjudicated on the merits" within the meaning of 28 U.S.C.
2254(d). See McCambridge, 303 F.3d at 35 ("If there is a federal or state case
that explicitly says that the state adheres to a standard that is more favorable to
defendants than the federal standard (and it is correct in its characterization of
the law), we will presume the federal law adjudication to be subsumed within
the state law adjudication.").

23

As a federal court sitting in habeas, then, we utilize the Brady standard of

prejudice and ask whether the SJC's conclusion that there was no prejudice was
"objectively unreasonable." Lockyer, 538 U.S. at 75, 123 S.Ct. 1166. For a
conclusion to be objectively unreasonable, it must carry some increment
beyond merely being incorrect. See McCambridge, 303 F.3d at 36 ("[T]he mere
fact that there was some error or that the state decision was incorrect is not
enough."); see also Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000). On the other hand, a state court's analysis is not to be
deemed reasonable merely because "it is possible that a competent court could
have reached the same conclusion." McCambridge, 303 F.3d at 36. "The range
for what is an unreasonable application must fall somewhere between the two.
Within that range, if it is a close question whether the state decision is in error,
then the state decision cannot be an unreasonable application." Id.

B. Analysis
24

The premise of Healy's Brady argument, both before the SJC and on federal
habeas, is that the post-mortem report and notes were significant because they
did not show signs of recent sexual activity by the victim. Healy argues that this
absence of evidence of sexual activity, in turn, was significant for two reasons:
First, it undermined the Commonwealth's theory that the murder was a result of
a homosexual encounter gone wrong. (It is this initial theory of prejudice on
which the federal habeas claim largely rests). Second, it would help the defense
theory that the police were biased against homosexuals, and that their
investigation was slanted and suspect. This, Healy argues, was because the
preliminary report shows that the police were considering Chalue's killing a
homosexual-related murder and instructing the pathologist to search for
evidence of homosexual activity from the outset.

25

The SJC "reviewed the entire trial transcript," Healy II, 783 N.E.2d at 438, and
recounted the facts at some length, id. at 430-33. It rejected Healy's Brady
arguments.

26

As to the second Brady argument, the bias claim, the SJC disagreed that "mere
examination and testing of the victim's body for signs of sexual activity
somehow suggests police bias. From the condition of the victim at the crime
scene . . . it would be reasonable for the police to consider and investigate the
possibility that the murder had some connection to sexual activity." Id. at 438.

27

As to Healy's initial theory of prejudicethe sexual encounter argumentthe

SJC responded, quite reasonably, that the theory was weak on its own terms for
several reasons and could not demonstrate a likelihood of prejudice. First, the
fact that the withheld evidence excluded certain forms of sexual activity did not
itself mean that no form of sexual encounter took place. Id. at 436. Second, the
SJC reasoned, the state of the record without the suppressed materials was
essentially the same as with those materials: The prosecution at trial had
introduced no evidence of recent sexual activity by the victim, so Healy was not
deprived of the ability to argue that there was no sexual activity. Id. at 437.
Further, Healy had chosen not to make this argument of no sexual activity at
trial, when it was available, thus undermining the assertion that it was an
important argument for the defense to make. Id. at 437-38.

28

The methodology used by the SJC is not to be faulted. As its careful ten-page
opinion demonstrates, the SJC reviewed the entire record, discussed each of the
defendant's arguments, and provided reasoned rejections for each point the

defendant raised. For this reason, the state court decision cannot be attacked on
the basis that it is "devoid of record support for its conclusions or is arbitrary."
McCambridge, 303 F.3d at 37. It is a daunting task for a habeas petitioner to
show that a considered opinion by the state's highest court is objectively
unreasonable when that court has made an evaluative judgment, based on the
entire record and applying the correct legal standard, that the petitioner has not
met the Brady standard for prejudice. Where petitioners have succeeded in such
claims post-AEDPA, it has sometimes been because the state court made an
error of law as to the standard to apply. See Bailey v. Rae, 339 F.3d 1107, 1118
(9th Cir.2003) (finding state court's Brady decision unreasonable where it used
a state-law prejudice standard less favorable to petitioner than the federal
standard). No such error is present here; indeed, the SJC concluded there was
no prejudice on a standard more favorable to Healy than that required under
federal law. It also bears note that the SJC was affirming, not reversing, the
finding of the motion judge, who also applied the correct standard, that no new
trial was warranted.
29

Turning to Healy's arguments on habeas, we quickly dispatch, as did the district

court, Healy's second prejudice claimthat the SJC was objectively
unreasonable in rejecting the theory of police bias. The victim's largely
unclothed body, found on a bed, raised an obvious possibility of a sexual
encounter which the police were well warranted in investigating.

30

As to Healy's principal theory of prejudice: The SJC's conclusion that the

withheld evidence did not come close to disproving a sexual encounter was not
unreasonable. As the SJC wrote, "[t]here is a wide range of sexual activity, up
to and including many forms of sexual assault, that leaves neither sperm nor
signs of injury to sexual organs." Healy II, 783 N.E.2d at 436. Further, the SJC
was correct to note that even absent the withheld materials, the defense could
have argued that the Commonwealth had introduced no direct evidence that a
sexual encounter had in fact occurred.7

31

Healy argues to us that the defense could have used the withheld evidence to
dramatic effect not just to disprove the idea that there was a sexual encounter,
rendering it less likely the killer was nude (and thus reinforcing the importance
of the lack of blood on Healy's clothes), but also to negate the relevance of the
semenstained underwear, to corroborate Healy's testimony that he had no sexual
relationship with Chalue, and to undercut the prosecution's purported attempts
to "establish[] a `homosexual murder' theory as a substitute for the missing
evidence of motive." But even accepting Healy's premise that it was essential
for the prosecution to prove a sexual encounter (which premise the SJC did not
accept, as we shall see), the SJC's conclusion that the evidence's suppression

did not meet the Brady prejudice standard was not objectively unreasonable.
The withheld evidence was of only limited probative value regarding the
likelihood of a sexual encounter based on the record viewed as a whole, and its
suppression did not create a new argument for the defense which was not
already available at trial. The SJC's decision that there was no prejudice was
objectively reasonable, and habeas must be denied on this basis alone.
32

Although no more is needed to deny habeas relief, we go on to comment on the

other arguments made.

33

In a second line of reasoning, not dependent on the first, the SJC rejected the
defendant's very premise that it was key to the prosecution to show the murder
had occurred during a homosexual encounter. The SJC, having reviewed the
record, found that the homosexual encounter theory was significant only in a
"narrow, limited" sense. Healy II, 783 N.E.2d at 436. The prosecutor, in his
closing, did not express such a theory, the SJC noted. Id. The prosecutor
mentioned it only in the Commonwealth's rebuttal closing, in response to the
defense argument that if Healy had killed the victim, Healy would have been
drenched in the victim's blood. This demonstrated, the SJC said, that the "only
way" the sexual nature of the encounter "had any significance was to establish
the reasonable possibility that the perpetrator may have been naked, so that the
jury would not attach undue importance to the fact that the defendant's shirt was
bloodstained in only one small area." Id. at 437.

34

In granting habeas, the district court found two main faults with the SJC's
analysis, which it felt made the SJC's decision objectively unreasonable.

The Closeness of the Case

35

First, the federal court said, the SJC's conclusion that confidence in the trial
was not undermined could only be reached by ignoring how extremely close
the case was. The federal court impermissibly faulted the SJC for "ignoring"
(by not explicitly mentioning) the trial judge's statement that the case was
close. Healy III, 397 F.Supp.2d at 311. The federal court erred in its approach.

36

The district court misread the SJC's opinion. The SJC did not ignore the
relative strengths and weaknesses of the case. It expressly said it had
considered the entire record, Healy II, 783 N.E.2d at 438, and it acknowledged
that the Commonwealth's case rested on circumstantial evidence, id. at 431.
The SJC explained with analytic clarity and precision how the suppressed
material could have affected the issues in the case. It expressly addressed the

arguments made. The SJC was not required to explicitly address the trial
judge's statement at all, much less when the statement was made in a different
context on a different issue.8
37

Further, we held in Bui v. DiPaolo, 170 F.3d 232 (1st Cir.1999), that "it is not
necessary that the federal court agree with every last detail of the state court's
analysis. By like token, state courts are not required to supply the specific
reasons that a federal court thinks are most persuasive for upholding the
judgment." Id. at 243. But this is the very approach the district court took. The
district court was not obligated, as it said it was, to make its own determination
of whether it was deprived of confidence in the jury verdict, as though it were
engaged in de novo review. Its task was limited to determining, irrespective of
whether it differed with the SJC's conclusion, the separate question of whether
the petitioner met his burden to show that that conclusion was objectively
unreasonable. The SJC's conclusion was not objectively unreasonable.

The Centrality of the Sexual Encounter Theory

38

The district court also concluded that the SJC had unreasonably downplayed
the role of the homosexual encounter theory in this case. Healy III, 397
F.Supp.2d at 292-93. But this conclusion is a simple difference of opinion with
the SJC about the import of the evidence. The SJC did not ignore the point that
the homosexual encounter theory played a role in the trial. It expressly
acknowledged that "there was extensive reference at trial to the defendant's
homosexuality." Healy II, 783 N.E.2d at 437. Even if one could, on de novo
examination, reach a different conclusion as to the effect of the withheld
evidence, that is no warrant for a finding that the SJC's conclusion was
unreasonable.

39

Underlying the district court's opinion is a concern about the possibility of

homophobia playing a role which tainted the jury deliberations and verdict.
This concern is shared by, and discussed in, the brief amicus curiae filed by the
Gay & Lesbian Advocates & Defenders. Without in the least discounting the
described issues of bias and stereotyping in the abstract, the concern has little to
do with the Brady prejudice issue presented in this case.9 The SJC understood
that the defense as well as the prosecution relied on evidence of Healy's
homosexuality. The issue presented by this habeas petition is not whether
Healy was or was not homosexual; he said he was. On the very narrow issue of
constitutional law before it, the SJC reasonably concluded that the suppressed
evidence neither confirmed nor excluded a sexual encounter, and that given this
limitation on the probative value of the evidence, its exclusion from the trial did
not undermine that court's confidence in the jury verdict.

40

We reverse the issuance of habeas corpus and remand to the district court for
further proceedings consistent with this opinion.

Notes:
1

Healy says on appeal that the Commonwealth "suggests that this Court's review
is restricted to the SJC's recitation of the evidence." While the Commonwealth
may have made this argument before the district court, it did not do so on
appeal. In any event, our precedent makes clear that we may at least consider
other facts from the record consistent with the state court's findings,Lynch, 438
F.3d at 39, and furthermore here the SJC explicitly said it had considered the
entire trial record.

Healy first described Roy as his roommate. The two were also lovers, a fact
both testified to at trial

Healy apparently testified at trial that he had been wearing jeans and a shortsleeved shirt that night, not the long-sleeved shirt on which the police found a
small blood stainSee Healy III, 397 F.Supp.2d at 279. Small stain or no, the
thrust of the defense argument was that Healy's clothes would have been soaked
in blood if he were the perpetrator.

The Commonwealth argued in state court that the earlier report in fact had been
disclosed to the defense in preparation for trial. The motion judge, however,
found that the report was not disclosed. The SJC declined to disturb that finding
of factHealy II, 783 N.E.2d at 433 n. 6.

Healy brought his first two new trial motions in the immediate aftermath of his
conviction. Both were denied by the SJC inHealy I. See 471 N.E.2d at 375 & n.
17.

The district court ordered that Healy be retried or released by March 1, 2006,
and denied the Commonwealth's motion for a stay. On February 23, 2006, this
Court reversed that order and entered a stay of release pending appeal

On habeas, Healy argues that the defense surely would have made this
argument had there been corroboration, which the withheld documents would
have provided. But even if this is so, it does not mean the SJC's no-prejudice
finding was objectively unreasonable, particularly given its conclusion as to the
limited probative force of the withheld evidence

The trial judge's comment did not occur in a vacuum. The judge noted that the

case was circumstantial during a discussion of the potential prejudicial effect of

the newspaper article, and of whether mistrial was warranted. The judge
inquired of each juror whether he or she had seen the article and eventually
returned the jury to deliberations. None of this undermines the reasoning of the
SJC, which itself stressed that the prosecution's case was circumstantial
9

The issue on which habeas is sought is not that of questioning prospective

jurors for bias as to homosexual sexual behavior,cf. Ham v. South Carolina,
409 U.S. 524, 527, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) (holding that the Due
Process Clause required the state court to ask the venire brief general questions
about race where the defense was arguing that police officers were "out to get"
the black defendant because of his civil rights activities), nor should we be
understood as suggesting any such questioning was required, see Mu' Min v.
Virginia, 500 U.S. 415, 431-32, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991)
(rejecting due process challenge to court's failure to individually question jurors
about pretrial publicity); Ristaino v. Ross, 424 U.S. 589, 598, 96 S.Ct. 1017, 47
L.Ed.2d 258 (1976) (finding no due process violation from court's failure to ask
the venire about racial prejudice, where the victims were white and the
defendants black but the "special factors" present in Ham were missing).